The opinion of the court was delivered by: McVerry, J.
MEMORANDUM OPINION AND ORDER
Now pending before the Court is the MOTION FOR SUMMARY JUDGMENT (Document No. 53), with brief in support, filed by Defendant City of Pittsburgh, Department of Public Safety (the "City"). Plaintiff, James Ganaway, has filed a brief in opposition and a response to the concise statement of facts (Document Nos. 65, 68). The City has filed a reply brief (Document No. 70), both parties have submitted numerous exhibits, and the motion is ripe for disposition.
Factual and Procedural Background
Plaintiff is a fifty-six year old African-American male who has been employed as a police officer by the City since November 3, 1980. The Complaint alleges that the City failed to promote Ganaway to sergeant due to discrimination based on race, gender, and/or age and asserts claims under Title VII, 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and the Pittsburgh City Code § 659.02.
On September 19, 1987, Ganaway severely injured his left knee while making an arrest.
For the next thirteen years, Ganaway was on workers compensation, light duty or modified duty, and did not wear a uniform, carry a firearm, operate a police vehicle or make an arrest. He did write reports, appear in court, interview victims and have contact with the general public. In July 1988, Ganaway returned to light duty in the warrant office. Three weeks later, he injured both knees, an arm, and his back in a fall on concrete stairs. He also suffered a back injury in a car accident. Ganaway did not return to work until June 1994, in the Telephone Reporting Unit, a modified/light duty program. On January 9, 1996, Ganaway fell in an icy parking lot, hurt his thumb, and subsequently developed Reflex Sympathetic Dystrophy in his right arm. When he returned to work in 1998 as a photographer in the ID section, his hand was still swollen. In December 1999, Ganaway received permission from Dr. Edwards to shoot a gun again and qualified with his service revolver. On January 17, 2001, Ganaway returned to full active duty and was assigned to Zone 5, which is a high-crime area.
No performance evaluations were conducted for the periods when Ganaway was on workers compensation or light duty. Sergeant David Herrmann performed an evaluation for January-June 2001, noting that Ganaway "needs improvement" in the following categories: problem solving, firearms, timely and organized, and field performance/follows directions. There were several comments on the evaluation which noted that Ganaway required additional supervision and assistance due to his extended absence from active duty. Ganaway commented on the review that he "should have had training before hitting the streets."
Requirements for promotion to sergeant at the time Ganaway applied included MPOETC certification and "considerable knowledge of firearms." On October 15, 1997, the City posted a Notice of Competitive Examination ("NCE") for the position of sergeant. The announcement listed the following job duties and knowledge/abilities: patrols assigned district and monitors performance of police officers; responds immediately to calls of a serious nature; takes charge until relieved by ranking officer; initiates miscellaneous reports; maintains records and prepares accurate reports; ability to withstand physical strain and personal hazards when involved in major police problems; deal with situations requiring quick and accurate decision-making; use and care for firearms; ability to communicate effectively, both orally and in writing. The announcement did not contain a prohibition against candidates who were on restricted duty. While still on workers compensation, Ganaway took the NCE and scored 19th out of 160 candidates on the written test. The Eligibility List was posted in March 1998 and expired on March 19, 2001. The last promotion from the Eligibility List occurred on April 27, 2001. Cassandra Wisniewski had been selected in February 2001 but was on maternity leave and could not start her new duties right away.
At all times, Police Chief Robert McNeilly made the final decisions with regard to promotions. Based on the selection procedure set forth in the Policemen's Civil Service Act, four names were submitted to McNeilly for each opening and he then selected the most qualified of those four candidates.
In September 1998, the police bureau sought to fill fifteen vacancies for sergeants. The personnel staff certified the top 29 scores for consideration. The top fifteen candidates were selected to fill these vacancies and Ganaway does not contest this employment action. In August 2000, five more sergeant positions opened up. The next eleven names on the Eligibility List, including Ganaway's, were submitted to Chief McNeilly. Ganaway was not selected for promotion. Ganaway testified that the City had no obligation to promote him to sergeant while he was injured or until he could return to full active duty. PCHR Transcript at 30-31. In January 2001, seven more sergeant vacancies accrued. Ganaway was considered for promotion but he was not selected. In February 2001, six more vacancies occurred and again Ganaway was not promoted to sergeant. In all, sixteen persons who scored lower than Ganaway on the NCE were promoted to sergeant.
McNeilly stated the following reasons in his affidavit, among others, for not promoting Ganaway: insufficient decision-making ability; subordinates would not have had confidence in his decisions which could jeopardize public safety; deficient communication skills; his performance had to be closely monitored; and he needed extra training. McNeilly was aware that it was necessary to place Ganaway with a field training officer to get back to the level of a full duty officer, and felt that a person in that situation could not be promoted. McNeilly also expressed reservations based on his personal observations, during the approximately ten years before he became Chief of Police, of Ganaway's performance, personality, and ability to handle more responsibility.
Ganaway was the only one of the ten persons over the age of forty who scored in the top 35 on the NCE who was not promoted. Three of the people promoted were older than Ganaway. Ganaway was the only one of the four African-Americans who scored in the top 35 on the NCE who was not promoted. The other three African-Americans who scored in the top 35, and who received promotions, were female. Ganaway was the only one of the 25 males who scored in the top 35 on the NCE who was not promoted. Subsequent examinations for sergeant were offered. Ganaway never re-took the test. Accordingly, evidence occurring after April 2001 -- including Dr. Wettstein's evaluation and the stray comments by Ganaway's "peers"-- is irrelevant.
Ganaway cross-filed discrimination claims with the Pittsburgh Commission on Human Rights (PCHR) and EEOC on April 26, 2002, or 363 days after he allegedly learned that Wisniewski had received the final promotion from the Eligibility List. Ganaway ...